Friesenhahn, 65, was convicted in 2016 by a Comal County judge after he caused his car to roll over in 2012 while his BAC was 0.29, more than three the legal limit of 0.08. He was sentenced to four years in prison.

Through his lawyer, Gina Jones, Friesenhahn argued the legal limit established by the law "violates equal protection because it unfairly discriminates against alcoholics," according to the court documents.

He claims the law is discriminatory because "many of those folks who suffer from the disease of alcoholism are able to maintain normal function at 0.08 versus a person who does not."

"The time is right for the judicial branch of the government to refocus on these laws to find out if our citizens that suffer from this disease are being unfairly treated versus others members of the society," the appeal argues.

The argument is a self defeating one, the court ruled.

"In essence, (Friesenhahn) does not argue that members of his defined class of alcoholics are treated differently than other DWI defendants under the statues. Instead he argues that they should be treated differently," the judge wrote.

"In sum, because the 0.08 alcohol concentration definition of intoxicate applies to all DWI offenders, all similarly situation persons are treated alike under the DWI statutory scheme," the ruling goes on to say.

The judge quashed the appeal, saying the argument did not meet the burden to make the DWI law unconstitutional.

Fares Sabawi covers crime in San Antonio and Bexar County for mySA.com. Read more of his stories here. | fsabawi@mysa.com